O'Keefe v R

[2009] NSWCCA 121

New South Wales
Court of Criminal Appeal

CITATION:	Matthew Peter O'KEEFE v R; R v Matthew Peter O'KEEFE [2009] NSWCCA 121
HEARING DATE(S):	13/03/2009
JUDGMENT DATE:	27 April 2009
JUDGMENT OF:	McColl JA at 1; Grove J at 2; Howie J at 3
DECISION:	1. The appeal against the convictions is allowed and the convictions quashed. 2. The sentences imposed in the District Court are quashed. 3. On counts 7 to 11 there is a verdict of acquittal. 4. There is to be a retrial of counts 1 to 6.
CATCHWORDS:	Criminal Law - Conviction appeal and Crown appeal against sentence - Evidence - tendency evidence - whether admissible - whether overly prejudicial - sufficiency of reasons admitting the evidence.
LEGISLATION CITED:	Evidence Act - ss 97, 101, 137, 165
CATEGORY:	Principal judgment
CASES CITED:	R v Fletcher [2005] NSWCCA 338 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 Pfenning v The Queen (1995) 182 CLR 461 House v The King (1936) 55 CLR 499 R v Nassif [2004] NSWCCA 433
PARTIES:	Matthew Peter O'Keefe v R; R v Matthew Peter O'Keefe
FILE NUMBER(S):	CCA 2007/15153
COUNSEL:	P Miller - Crown P Strickland SC / D O'Neill - Appellant/Respondent
SOLICITORS:	S Kavanagh - Crown S O'Connor - Appellant/Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0850
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	10/07/2008

2007/15153

McCOLL JA
GROVE J
HOWIE J

MONDAY 27 APRIL 2009

Matthew Peter O’KEEFE v R; R v Matthew Peter O’KEEFE

Judgment

1 McCOLL JA: I agree with Howie J.

2 GROVE J: I agree with Howie J.

3 HOWIE J: The appellant was tried before a jury in relation to sexual assault offences allegedly committed against four complainants. Each of the women had been separately assaulted in bushland in suburban Sydney on different occasions between 3 January 2006 and 17 January 2007. The only issue at the trial was whether the appellant was the person responsible for the assaults against all or any of the complainants.

4 The appellant was convicted by the jury of all the offences on the indictment and sentenced to a total term of imprisonment for 10 years with an overall minimum period of custody of 8 years. The appellant has appealed against his convictions and the Crown has appealed against the sentence imposed.

5 In respect of the last series of offences, those committed against the complainant JG on 17 January 2007 (“the JG offences”), the substantial, if not only, evidence against the appellant was that which the Crown relied upon as either tendency or coincidence evidence arising from the other counts on the indictment. In other words, before the appellant could be convicted of the JG offences, the jury had to be satisfied beyond reasonable doubt that he had committed offences involving one or more of the other complainants and then reason that, because he committed those offences, he was the person who committed the JG offences. Whether there was any evidence to support that reasoning other than the similarity of the attacks upon one or more of the complainants was a matter of some contention on the hearing of the appeal.

6 Ultimately it was argued on behalf of the appellant that there was insufficient evidence upon which the jury could safely engage in the reasoning relied upon by the Crown in respect of the JG offences. This was either because the evidence was not sufficiently cogent to support tendency or coincidence reasoning or its probative value as such was outweighed by unfair prejudice arising from the admission of the evidence of the other complainants so that it should have been rejected under s 101 of the Evidence Act. There was also complaint about the reasons given by the trial judge (Puckeridge DCJ) in admitting the evidence and in the directions given to the jury about how they should use it.

7 The appellant contends that there should be a verdict of acquittal entered by this Court in respect of the counts in the indictment relating to JG and an order for retrial in respect of the other counts.

Crown Case
( A) Complainant LW: Counts 1 and 2

8 At about 7 am on 3 January 2006 LW was walking along a track near the Great Western Highway at Emu Plains. This was bushland leading to Knapsack Bridge. A man rode past her on a black racer bike. She said hello but the man did not reply. She kept walking. She had gone another 100 metres when the man grabbed her shoulders from behind. There was a struggle and the man threw her to the ground by grabbing her bra strap. Her singlet top tore. She kicked at him and warned him that other persons walked along the path.

9 She got to her feet and the man said, “Show me your tits”. She refused and he threw her to the ground again (Count 1). He told her that, if she showed them to him, he would let her leave. She said she would if he allowed her to stand up. She got to her feet and lifted her top and bra. The man said, ”Let me touch them” and touched her right breast (Count 2). She unsuccessfully tried to kick him. The man moved away saying, “It wasn’t worth it anyway, keep running”. He then left.

10 LW said that her attacker was about 170 cm tall, tanned and without body hair. She told police he was about 25 years old, muscular and with an Australian accent. He was wearing a red and yellow bike top and black tights with straps over his shoulders like a weightlifter. He was wearing a white helmet and sunglasses.

(B) Complainant BP: Count 3

11 At about 6am on 18 February 2006 BP was walking on a path between the Great Western Highway and Warrimoo Railway Station heading toward the station. She heard the sound of a bike behind her and moved to the side to let it past. A man ran in front of her blocking her path.

12 The man said, “Show me your tits”. She tried unsuccessfully to pass him. She asked him to let her past. He said, “Show me your tits, you can still catch your train, I won’t hurt you”. She screamed. The man grabbed her shoulder and said, “Shut up or I’ll slap you”. The man told her. “Show me your tits, you can still catch your train. Just do it now. No-one can hear you.” He then pulled down her purple top and bra. He moved his face toward her breasts and looked at each one. He then ran off.

13 She said the man was Caucasian and appeared Australian. He was in his late 20’s with a fair complexion, average build and a goatee. He was wearing a bicycle helmet, wrap-around sunglasses, a lycra blue and yellow t-shirt and lycra blue and yellow cycling shorts. He was about 179cm.

14 On 23 February 2007 BP was shown a photo array with number 13 being the appellant. She was unable to recognise any person.

15 A man named Harris who was walking his dog observed the incident. Harris described the man as Caucasian, tall and thin in a white or pale short-sleeved top. He said that the man looked quite young.

(C) Complainant MO’D: Counts 4, 5 and 6.

16 About 10am on 19 December 2006 MO’D went for a run on a track in Lane Cove National Park in bushland heading towards Brown’s Waterhole. She saw a man sitting on the ground next to his bike. They exchanged greetings and she kept jogging. About 10 to 15 minutes later she again saw the man standing next to his bike across the path. She slowed down and he asked for the time. It was 10.45.

17 The man said, “Show me your tits.” She refused and tried to pass him but he stepped in her path. He again asked to see her “tits”. Again she refused and he threatened to throw her off the bridge they were standing on. He approached and she moved back. He stumbled and approached her again saying, aggressively, “Don’t do that again, it’ll just cause you more problems”. The complainant kicked him and ran off but he cut her off. She started screaming and he said,” Shut up, someone might hear you. If someone comes then I’m going to have to hurt both of you”.

18 The complainant told him that she did not want to be raped. He said, “I’m not going to rape you, just show me your tits”. She lifted her top revealing a crop-top covering her bra. He said, “Is that all?” When she did nothing to reveal any more, he punched her to the stomach. She fell to the ground onto her back, causing scratches to her legs, back and stomach. (Count 4) While she lay on the ground screaming, he came over and put his hands under her clothing, touching her breasts. (Count 5) He told her to shut up and said, “All right, now show me your cunt”. She screamed louder and held her legs together. He told her to shut up and then put his hand over her mouth. (Count 6) He then removed his hand and said, “Oh, you’re not worth it bitch”. He went back to his bike and she started to run. When she looked at her watch it was 10.51.

19 She described the man as late 20s, probably more into his 30s. He was wearing a riding helmet, grey or black, and sunglasses. She was not sure of his nationality but did not think he was Caucasian but sounded Australian. He was not blonde and had olive/yellowish skin. He was about 6 feet, stockier with a squarer jaw. He was wearing a red t-shirt and dark shorts. His bike was dark perhaps a mountain bike. She was shown a photo array including a photo of the appellant and chose a photo of another person. The person in the photograph could not have been the attacker as he was working in Port Kembla. DNA evidence from the complainant’s top matched that of the appellant.

(D) Complainant JG: Counts 7 to 11

20 At about 9am on 17 January 2007 JG was jogging in Marsfied on a track leading to Brown’s Waterhole when she saw a man jogging toward her. She saw him again about half an hour later. He asked her where she was going, and then said, “Lift up your top”. He was blocking her way. She asked him why and he said that he wanted to take her photograph. She tried to run away and he told her not to. She started screaming and he told her to stop as there was no one around.

21 He took out an object that she thought was a mobile phone, “a black shiny thing” with a silver strip along the edge and a rectangular shape. He told her to lift her top or “I’ll punch you in the stomach”. He said “Just lift it up. Do you want me to tear it off and you’ll walk half naked?” She lifted her top and he held the mobile phone in front of her breasts. She turned her face away to avoid being photographed.

22 He then told her pull down her shorts. She removed her shorts and underwear. He told her to turn around and bend over. She complied and he started to rub the lips of her vagina with his fingers. (Count 7). He then inserted his penis into her anus. (Count 8) It was painful and she told him he was hurting her. He said, “Would you rather suck my cock?” He withdrew his penis and turned her to face him. She started to kneel but he told her to stand. She put her mouth on his penis. (Count 9)

23 He took his penis out of her mouth and turned her around. He told her to lift up her leg but she did not. He then inserted his penis into her anus again. (Count 10) He then withdrew his penis and turned her to face him. She was on her knees and he grabbed her on the shoulder and pushed his penis deep into her mouth. She tried to pull back but he kept hold of her head. (Count 11) She managed to move her head and spat. She asked if he was finished and he asked whether she was going to report him to the police. She said, “What’s the point, I don’t know anything about you.” She then turned to dress and he jogged away.

24 JG described her attacker as about 30-35 years old, 175-180 cm tall, very strongly built with olive or tanned skin with pronounced jaw and stubble. He was wearing a casual cream shirt and beige shorts. The complainant was shown a photo array on 15 February 2007. She selected a photo that was not the appellant but was the same photo as chosen by M O’D. DNA evidence did not implicate the appellant.

25 According to police investigations the appellant was working at Belrose on 17 January 2007 between 12.12pm and 8.01pm.

Evidence relating to the appellant

26 On 22 January 2007 two police officers were walking along the track towards Brown’s Waterhole. They saw the appellant sitting next to a bike using a mobile phone. They saw him again later and spoke to him. They asked where he worked and he said, “Work, I’m a storeman at Frenchs Forest”. He was Caucasian, 175cm tall with sold build and was very tanned. He was wearing lycra biking clothing. He had a pair of sunglasses in his backpack.

27 The appellant was a member of the Penrith Triathlon Club. He used to wear lycra cycling clothing. He had two bike helmets. A search of his unit located various items of lycra cycling clothing and two bikes one without wheels. On 22 January he gave his girlfriend a black Nokia mobile phone after she had lost hers. He was generally clean-shaven although occasionally he had a couple of days stubble.

Conversations with police

28 On 6 February police spoke to the appellant in Lane Cove National Park. He was wearing lycra cycling clothing and sunglasses. He had tanned skin and an olive complexion. He had stubble. He said he went there once a week. He started work at 1 pm in Belrose. On 9 February the appellant was arrested for an offence against MO’D. He was told that police were investigating an indecent assault on 19 December 2006 and a sexual assault on 17 January. He refused to be interviewed.

29 Later he was told police were investigating an indecent assault on 19 December 2006 at Lane Cove and an indecent assault on 3 January 2006 at Emu Plains. He said, “What the fuck!” He shook his head when asked if he wanted to be interviewed regarding an indecent assault on 18 February 2006 at Warrimoo. When asked if he wanted to be interviewed about a sexual assault on 17 January 2007, he said, “No fucking hell”. He was charged with offences arising from incidents on 19 December and 17 January.

30 After being told that his DNA matched that found on the victim of the assault on 19 December, the appellant said, “I think you and me should have a talk”. He told the police that he did not want to be recorded on tape. He said that he wanted his girlfriend, Rebecca, present as he had been with her for 8 years. As it was early in the morning, police said they would talk after they had all had a sleep. The appellant said, “When we talk either tonight or tomorrow, how much can you do, how far can you go?” He was asked what he meant and he replied, “You know, where we can talk. When can we do this on the tapes?” The appellant agreed to speak with police the next morning at Parramatta when Rebecca was present.

31 However the appellant then made the following statements:

“They were split decisions I made, they were wrong. They were split-second decisions. I have issues, you know, I have anger issues. They were wrong. I shouldn't have, I know it was wrong“.

“Warrimoo. That's good. You caught my attention with that. That's good. That's real good. Two guys in suits that caught my attention, but when you mentioned Warrimoo that was good. I knew that you have been doing your work on me. Warrimoo I can tell you about waiting on the path sitting on a seat on a path near the road. I can tell you, you got my attention with that, the search warrant now that was a good move. I knew you guys were serious”.

“These issues, these issues with Rebecca that's the problem. These issues with Rebecca led to these attacks. Relationships. I have problems and that's what happens. These issues are the problem”.

“Whenever this happens I want Rebecca here. She knows, I told her and she knows. I want Rebecca sitting right here when we do this. If not tonight then tomorrow or whenever. When we do this I want Rebecca to be here. This will take time. When we do the interview it will be long. I can tell you time, dates and places. We will have plenty of breaks and it will be long. We can't do it tonight, it's too late. I need Rebecca here…. Rebecca has the phone. I gave her the phone…..the phone you asked me for. I gave it to her because she needed a phone and she has it”

“I can tell you about the footpath sitting there beside the road at Warrimoo, the clothes I was wearing. The interview will take all day. We'll need heaps of time. I need some form of help. I have anger problems. This has happened when me and Rebecca have had dramas…. I mean I can tell what happened and the dates and stuff but you might need help with it. I mean I have trouble in the order. I remember it all, but I get the order wrong, so I don't know if you guys can handle it or you'll need help”.

32 The next morning at Parramatta the appellant spoke to Rebecca and then refused to be interviewed.

The appellant’s case

33 The appellant gave evidence that from June 2006 he was working in Belrose and he rode his bike there from Wentworthville every working day. He had driven only twice when it was raining. He worked from midday to 8pm. He arrived at about 11.15am. He denied driving to work on 17 January 2007 when JG was attacked.

34 He disputed much of the evidence given by police including meeting officers on the path at Terry’s Creek on 22 January. He said he met them at the access gate at the M2. He used to take a break there and often used his phone. He denied entering the park there and had never been to Brown’s Waterhole. He could not explain how his DNA came to be on the clothing of M O’D or LW.

35 He denied ever having been to Warrimoo and did not know where it was. He denied the evidence given by police as to his statements about Warrimoo. He said he refused to be interviewed although he requested to see Rebecca. He only spoke to police in an attempt to obtain bail.

Grounds of Appeal


Ground 1. His Honour erred in refusing to sever counts 7 to 11 from the indictment

Ground 2. His Honour erred in admitting the evidence of the offences contained in counts 1 to 6 as tendency evidence in the trials of counts 7 to 11.

Ground 3. His Honour failed to give adequate reasons for his rulings in relation to refusing to sever counts 7 to 11 and for admitting the evidence of the offences contained in counts 1 to 6 as tendency evidence in the trials of counts 7 to 11.

36 These grounds were argued together. The complaint is that the trial judge should not have permitted a trial of counts 7 to 11, the counts relating to JG, jointly with counts 1 to 6, the counts relating to the other three complainants. The appellant argues that the jury could not use any evidence relevant to counts 1 to 6 to determine that he committed the assaults upon JG. He contends there was no evidence fit to be used by the jury of any tendency arising from the circumstances surrounding the commission of the offences in counts 1 to 6 that could identify the person responsible for those offences as also responsible for the offences in counts 7 to 11.

37 The Crown served on the appellant notices under ss 97 and 98 of the Evidence Act dated 16 October 2007. The notices specified that the appellant had a tendency “to act in a particular way, namely sexually or indecently assault females at early times in the day in a secluded bush track locations in the manner set out below”. There were then set out a number of columns. In the first labelled “similarity/tendency” a number of attributes of the attacker or the attacks, such as “Demand to lift top” or “Offender described as having tanned skin”. There were then columns labelled with the name of each of the complainants under which was a reference to the statement of the complainant in which the attribute was to be found. If the attribute did not apply to a particular complainant, there was “N/A” written in the complainant column against the particular attribute.

38 The appellant sought to have four separate trials, one in relation to each of the complainants. A hearing was held before the trial judge in what was described as a voir dire on 27 February 2008. The Crown tendered written submissions that included the following passage:

Tendency Evidence

11. The Crown seeks to adduce evidence of a tendency of the accused to act in a particular way and to have a particular state of mind, namely:

· to frequent secluded bushland locations where vulnerable females (because they were alone) might be expected to be present;

· to verbally and/or physically threaten such females in order to get them to comply with his demands;

· to have a particular interest in their breasts;

· to sexually assault them against their will; and

· to do so knowing they were not consenting or willing participants.

39 On that date the trial judge indicated that he would allow a trial of all eleven counts on the indictment to proceed. The reasons were brief and in effect simply stated that the evidence had, in the words of the relevant sections, “significant probative value” and that “the probative value of the evidence substantially outweighed any prejudicial effect on the accused”.

40 On 5 March 2008 the Judge delivered a further judgment that dealt with a number of issues including the admissibility of the admissions allegedly made by the appellant to police. In relation to the tendency evidence his Honour said:

All four of the complainants are expected to give evidence, which can be summarised as follows:


(i) each victim was jogging or walking.

(ii) it occurred early to mid-morning on a weekday,

(iii) similar initial greetings,

(iv) the offences occurred in a recreational reserve/park,

(v) the offender demanded of one of the victims to lift her top and demanded three of the victims to "show me your tits",

(vi) threats of violence and actual punches to certain of the complainants,

(vii) the offender at the time of the alleged offence for counts 1, 2, 3, 4, 5 and 6 of the proposed indictment said to be wearing a bike helmet and sunglasses.

41 Later his Honour said:

The Crown has submitted that the evidence referred to in the notice pursuant to section 97 show a tendency on the part of the offender to ride a bicycle in bushland reserve and to accost young women walking in the reserve and demand of such women by use of threats that they expose their breasts in his presence. In relation to the counts 7 to 11, the Crown also submits that the evidence sought to be adduced would show a tendency on the part of the offender to have a fixation with breasts.

It is further submitted by the Crown that the modus operandi of the offender could show that it was the same offender and the same person who had the same tendency to act in the same manner or a similar manner.

42 And later still:

I was concerned that counts 7 to 11 of the proposed indictment concerned a victim who was not accosted by a person wearing a bike helmet or sunglasses. However, the description given by the victim [JG] was not dissimilar to the broad description by other victims and the offence took place in the same area where the victim [M O’D] was assaulted; not in the exact same area but the same locale. Although the same demand was not made of the victim [JG] as was made of the other three complainants, she was asked to lift her top and the offender stated he wanted that to occur in order to photograph her breasts. I accept the submission made by the Crown that the circumstances of the sexual assaults on [JG] commencing in the manner in which they occurred showed a tendency on the part of the offender to have some obsessive fixation with breasts.

In my ruling of 27 February 2008 I stated that I considered the probative value of the evidence substantially outweighed any prejudicial effect on the accused. The accused has submitted that the jury might unfairly use the evidence of tendency to wrongly identify the accused as the offender. I consider that warnings will be required to be given to the jury that whilst the tendency evidence might be relevant as to whether it was the same offender who committed the offences, that, of itself, would not identify the accused as the offender. The danger generally as to identification would have to be emphasised to the jury. Such directions would, I consider, diminish any prejudicial effect of the evidence and as I stated in my ruling of 27 February 2008 the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

43 As the issue was ultimately dealt with at the trial the only basis upon which the evidence relevant to counts 1 to 6 became admissible on counts 7 to 11 was by tendency reasoning. Tendency evidence is admissible only if it complies with s 97 of the Evidence Act. That section, as at the time of the trial, was as follows:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

44 The other provision dealing with the admissibility of tendency evidence is s 101 of the Evidence Act. That section was relevantly as follows:

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

45 It is unnecessary to consider in any detail the application of s 97 to evidence tendered by the Crown as evidence of tendency. The section was subject to considerable analysis by Simpson J in R v Fletcher [2005] NSWCCA 338. There her Honour wrote:

[33] It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind: —

(i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury);
(ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence “to be adduced”, and implicitly by the use of the subjunctive “would not” in s 97(1)(b).
(iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of “probative value” contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue;
(iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, ie if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible.


[34] I have not, to this point, said anything about the identification of the “fact in issue”, the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant.

[35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer — reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence “to be adduced” is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated.

46 The applicant relied upon her Honour’s judgment to support an argument that it is not sufficient under s 97 that the trial judge simply determines that the evidence has sufficient probative value to meet the test in the section, but also should make a determination of the full extent of its probative value at that point. But it is unnecessary to determine whether the judge at the s 97 admissibility stage must determine the full weight to which a jury might give to tendency evidence because under s 101(2) a weighing process must be undertaken of the probative value of the evidence as against its prejudicial effect upon the accused. That will require the judge to assess both aspects of the evidence that have to be weighed in the balance; the probative value that a jury might assign to it as against the potential of the fact that the jury might misuse the evidence in a way for which it was not admitted.

47 The test to be applied under s 101(2) was considered in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700. Although counsel for the appellant sought to rely upon decisions of the High Court under the common law, including Pfenning v The Queen (1995) 182 CLR 461, in support of his arguments as to the admissibility of the evidence in the present case, it is unnecessary for the resolution of the appeal to consider those decisions in any detail. They are now merely the application of common law principles to particular factual situations, although they may provide guidance to the type of prejudice that may arise if such evidence were admitted. The Court in Pfenning was, and the provisions of s 101 are, concerned with resolving the dilemma that arises when a court is faced with the admission of probative evidence that is highly prejudicial. In Ellis this Court determined that the test in s 101(2) was generally to be applied in resolving that dilemma rather than the common law test expounded in Pfenning.

48 However, there was a recognition in the judgment of the Chief Justice in Ellis that there might be cases where, in the words of the headnote, “on the facts, it would not be open to conclude that the statutory test for admissibility is satisfied unless the common law test is also satisfied”. The applicant contended that this was such a case, so prejudicial was the evidence and so slight its probative value. It was argued that the evidence ought not to have been admitted by the trial judge unless he were satisfied, applying the test in Pfenning, that there was no other rational explanation for the tendency evidence other than that the applicant was guilty of the offences in counts 7 to 11. That of course was not the test the trial judge applied.

The trial judge’s reasons

49 Simpson J pointed out in the passage quoted above that, as the trial judge is to undertake an evaluative assessment of the probative value of the evidence, minds might reasonably differ as to the outcome of that assessment. The same has been said of the application of s 137 of the Act. Both in respect of a determination made under s 101(2) and a determination made under s 137 a review of that determination by this Court can only be performed in accordance with the principles laid down in House v The King (1936) 55 CLR 499.

50 The applicant contends under Ground 3 above that the Judge failed to give sufficient reasons for determining to admit the evidence. Even if that assertion were made out, it would not have the effect of rendering the decision to admit the evidence nugatory. However, the reasons given by the trial judge may disclose error in the exercise of the discretionary judgment to admit the evidence under the House principles or the failure to give adequate reasons may mean that this Court could not rely upon the judge’s determination and would have to reach its own conclusion as to whether the evidence ought to have been admitted.

51 With respect, it must be said that the reasons given for admitting the evidence are significantly less than satisfactory. It seems to me that his Honour never really came to grips with the real issue involved in the prejudicial nature of the evidence. Nor did he analyse to any degree the nature of the tendency evidence being relied upon by the Crown. The first judgment merely repeated the phrases used in the relevant sections without the Judge indicating in any way how the evidence satisfied the tests of admissibility to which he referred.

52 In the second judgment the Judge considered the significance of the tendency evidence and its prejudicial effect but not in any great depth. His Honour identified the prejudicial nature of the evidence as being that the jury might use it “to wrongfully identify the accused as the offender” in counts 7 to 11. On a very superficial level that is so but it is the reason for the possibility of a wrongful identification that is important. The real danger was that the jury may incorrectly reason that, because the offender committed one or more of the offences in counts 1 to 6, he also committed the offences in counts 7 to 11 simply because he had a propensity to attack women on secluded paths or had some other propensity of a general nature that was insufficient by itself to sustain a conviction for the JG offences.

53 The Judge saw the means of overcoming the prejudice he identified by two directions he would give the jury. The first was to direct the jury that:

“……while the tendency evidence might be relevant as to whether it was the same offender who committed the offences, that, of itself, would not identify the accused as the offender”.

The second was to give the jury directions warning them of the danger of identification evidence.

54 The first direction would not focus attention on the real prejudice of the evidence, that is that the jury might misuse it as general propensity evidence without considering whether the tendency for which it was admitted, that is “a tendency on the part of the offender to have some obsessive fixation with breasts”, either arose on the evidence or, if it did, was sufficient, by itself or when taken with other evidence, to identify the applicant as the offender.

55 Ultimately it was a circumstantial case against the applicant in relation to the counts against JG, subject to what the jury might make of the admissions allegedly made by the applicant. That is a matter to which I shall return shortly. But the jury would have to be satisfied that there was no reasonable possibility that it was some person other than the applicant who attacked JG. Unless the Judge determined what other evidence there was, if any, that the prosecution could rely upon to identify the appellant as the attacker of JG and the probative value of that evidence, it was no answer to the prejudice arising from the admission of the evidence that the tendency evidence was not itself sufficient to give rise to a conviction on counts 7 to 11. If the other evidence had little probative value by itself, then the likelihood was that the prejudicial aspect of the tendency evidence would still outweigh the combined probative value of the tendency evidence and the other evidence in the prosecution case.

56 The second direction was of little, if any, relevance. Presumably his Honour had in mind the directions required to be given in a case of identification evidence, where the evidence is visual or aural identification. The Evidence Act says nothing about identification by means such as the use of coincidence or tendency reasoning or by circumstantial evidence generally. Nor does the common law. The courts have not developed any special knowledge about such identification evidence about which a jury needs to be warned under s 165 of the Evidence Act or otherwise. In the present case the only danger that arose in the identification of the applicant as the offender was the danger in the use of the tendency evidence. A general direction about the danger of identification evidence would be more likely to confuse the jury than assist in overcoming the prejudice arising from the admission of the tendency evidence.

57 Further, the trial judge never attempted to determine the probative value of the evidence other than to the degree it was necessary to pass through the s 97 gate of admissibility. Unless he performed this task he could never properly carry out the weighing exercise required under s 101(2). But in any event, as I have indicated, his reasons reveal that he failed to address the real issue involved in the determination of whether the evidence should be admitted. Further, in deciding that he could ameliorate any prejudicial effect of the evidence, the Judge took into account an irrelevant consideration, being the effect of a direction or warning in relation to the danger of identification evidence.

58 The Judge’s determination to admit the evidence, as disclosed by his reasons, was erroneous. In order to determine whether a miscarriage of justice arose, this Court must consider for itself whether the evidence in relation to counts 1 to 6 ought to have been admitted in respect of counts 7 to 11.

Admissibility of the tendency evidence

59 The Crown points out, rightly, that the admissibility of tendency evidence cannot be considered in a vacuum. The decision whether to admit the evidence must be considered in light of the other evidence relied upon by the Crown to prove that the accused was the person who attacked JG. If the tendency identified stood alone in identifying the appellant as the offender in the JG offences, it would have to be sufficiently peculiar or singular to amount to what has been described as a “hallmark” or “signature” of the appellant such that it would offend common sense to exclude it.

60 But one of the difficulties in the present case is appreciating exactly what was the tendency being relied upon by the Crown as distinct from the general circumstances in which the tendency was displayed. As Simpson J noted in R v Nassif [2004] NSWCCA 433 at [51] “the more numerous the claims of tendency evidence, and the more specific, the stronger the probative value. And thus the more likely the admission of the evidence”. But, of course, the converse is true. The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally.

61 In the trial judge’s judgment, quoted above, the tendency was described as “to have some obsessive fixation with breasts”. Yet the Crown’s description of the tendency in its written submissions on the voir dire hearing on the admissibility of the evidence had a number of attributes being: to frequent secluded bushland locations where vulnerable females might be located; to verbally and or physically threaten such females to get them to comply with his demands; to have a particular interests in their breasts; to sexually assault them against their will; and to do so knowing they were not consenting or willing to participate.

62 In my opinion, the tendency evidence obtains no more probative value simply by adding general factors to describe the tendency that have by themselves little significance. The result may be simply to distract a jury from that task of determining whether there is a tendency that has been proved from one set of facts, here from the evidence led on counts 1 to 6, and is present in another set of facts, here in the evidence to support counts 7 to 11. Much of the Crown’s description of the tendency was surplusage; it identified four attributes that were in truth only one, if the attribute was compendiously described.

63 Stripped to its fundamental elements, the Crown was alleging a tendency to sexual assault females in secluded locations with a particular interest in their breasts. The Crown was driven to generalise the tendency because of the difficulty of finding a specific tendency from the evidence in counts 1 to 6 that could be applied in counts 7 to 11. The evidence to prove the appellant committed the offences in counts 1 to 6 was coincidence evidence. The facts giving rise to the coincidence were: a man of 20 to 30 with athletic build and tanned skin dressed in cycling clothing with helmet and dark glasses and a bike accosted lone women on isolated bush tracks and asked them, “Show me your tits” before attempting to sexually assault them by the use of threats or force.

64 However, the Crown could not rely upon coincidence evidence arising from counts 1 to 6 to prove counts 7 to 11 because there was none: the facts of the attacks upon JG were insufficiently similar to those surrounding the attacks upon the other three complaints. For example, the Crown could not rely upon the offender being dressed in cycling attire including helmet and sunglasses, and with a bike. Nor could it rely upon the type of the sexual assaults committed or the nature of the threats made or the words used. But in generalising a tendency derived from counts 1 to 6 to try to make it apply to counts 7 to 11 the probative value of the evidence was very significantly reduced.

65 A tendency to sexually assault females in secluded locations could not in my opinion have “significant probative value” to justify admission under s 97, even accepting that the gateway through that section is not particularly demanding. There is nothing peculiar about such a tendency that would identify a person with such a tendency as the offender against JG putting aside any other evidence of a persuasive nature to identify that offender. It would be more peculiar and, therefore, of significantly greater probative value, if the offender had a tendency to sexually assault females in the presence of members of the public. The addition of “bushland” to the “secluded location” in the description of the tendency was to my mind of no particular significance.

66 In my opinion the tendency did not gain significant probative value by the additional fact that the offender also had an interest in the victim’s breasts, however that interest might be described. I do not find it peculiar and, hence of any particularly significant probative value, that a person who has a tendency to sexually assault females has a particular interest in what is the most prominent part of the female anatomy.

67 I might have been prepared to accept that the use of the words, “Show us your tits” as the opening gambit by the offender in each of the four assaults would have given rise to a tendency with sufficient specificity or peculiarity that it could survive the application of s 101(2). But the Crown was in a difficult position because the interest in breasts had to be generalised as there was no significant similarity in how that interest was demonstrated between counts 1 to 6, on the one hand, and counts 7 to 11, on the other.

68 In my opinion the tendency relied upon by the Crown, when stripped to its essence, could not meet the test in s 97. But, in any event, if that were the only evidence upon which the Crown could rely to prove that the appellant was the offender in the JG assaults, it would fail the application of s 101(2). The major difficulty for the Crown was that there was little to connect the JG offences with those committed against the other complainants. The singular fact of the offender in the earlier matters being dressed in cycling apparel and accompanied by a bike was absent, a matter which obviously concerned the trial judge.

69 The prejudicial effect of the tendency evidence was clearly very high. Even though it was insufficient itself to prove beyond reasonable doubt that it was the same offender who attacked JG has attacked the other complainants, it was consistent with a characteristic displayed by the offender in the attacks upon the four complainants in a vague, general sense. There was a very real risk that a jury would give the evidence of such a tendency more weight than it deserved by finding that the kind of person who committed one or more of counts 1 to 6 was also the kind of person who committed counts 7 to 11 and for that reason convict the appellant.

70 The evidence was so prejudicial that I doubt that it could have been made admissible even had there been other reliable evidence to suggest that it was the appellant who attacked JG. That is because I do not believe that the evidence had any more probative value than evidence of an offender’s criminal record that showed he had committed similar offences in the past. However, the tendency evidence, such as it was, should be considered against other evidence that the appellant committed the JG offences.

Other evidence including the admissions

71 There was a similarity in the description of the offender given by JG and that of the appellant. However, it should be noted that JG did not identify the photograph of the appellant but picked a photograph of a person who had been identified by M O’D and yet could not have been the attacker in either case. It should be noted that despite the offender having intercourse with JG there was no DNA evidence connecting the applicant with JG.

72 There was evidence that the appellant had been seen in the general vicinity of the attack upon JG by police after that attack, on 22 January, and the jury found he was the person who attacked M O’D in the same locality. He was also seen and spoken to by police in the Lane Cove National Park on 6 February. He was working in Belrose on the date of the attack upon JG according to police. Of course on both occasions when police had seen him and also when he had allegedly attacked M O’D he was in bicycle clothing or at least had a bicycle helmet and bike. The Crown tried to overcome this difficulty by suggesting that the applicant had driven to work that day instead of cycling, as was his normal habit. But this explanation did not overcome the fact that the evidence of the JG offences lacked a significant characteristic of the offender in the three other attacks and a characteristic of the appellant when he had otherwise been seen in the area, the presence of a bike and cycling paraphernalia.

73 The Crown in this Court placed much reliance upon the alleged admissions. On 9 February 2007 Detective Shepherd arrested the appellant for the M O’D offence. At the police station Det Fitzgerald informed him that he was investigating an indecent assault on 19 December 2006, the M O’D offence, and a sexual assault on 17 January 2007, the JG offences. He then refused to be interviewed. He was later informed of an investigation of an indecent assault on 3 January 2006 at Emu Plains and he responded, “What the fuck?” He was later informed that the police were investigating an indecent assault on 18 February 2006 at Warrimoo. He again refused to be interviewed. When asked if he wanted to be interviewed about a sexual assault on 17 January 2007, he said, “No fucking hell”. He was later charged with the M O’D offence and an offence against JG and said, “Whatever”.

74 It was after the appellant was informed of the match of his DNA with the offence of 19 December that he had the conversation that has been set out earlier in this judgment and during which the Crown alleged he made certain admissions. None of those admissions explicitly refers to the JG offences. The Crown submits that it was open to the jury to conclude that what he said was a response to the four allegations that had been put to him at various times at the police station. The appellant referred in the alleged admissions to “split decisions” and that his issues with Rebecca “led to these attacks”. He also said “I can tell you time, dates and places”.

75 I do not believe it was reasonably open to a jury to find that by inference the appellant was admitting to each of the four attacks that had been mentioned to him as opposed to two or three of them. If such an inference was open, it was a very slight one. It could not possibly support a conviction of the appellant for the JG offences, with or without the tendency evidence. In my opinion the tendency evidence either by itself or taken with other evidence available to the Crown should not have been admitted.

76 As in my opinion the first two grounds of appeal should be upheld there is no need to deal with the other grounds. Because the tendency evidence should not have been admitted, there should have been a separate trial of counts 7 to 11 from counts 1 to 6. Although some question arose in my mind initially as to whether this Court should order a re-trial on counts 1 to 6, on reflection I do not believe the proviso can be applied in respect of the convictions for those offences even though the case against the appellant on those charges was, in my opinion, overwhelming. I am not satisfied there has been no miscarriage of justice in respect of counts 1 to 6 by reason of counts 7 to 11 and the evidence of JG being before the jury.

Ground 5. The jury’s verdict on counts 7 to 11 were unreasonable and not supported by the evidence

77 Because on my view the tendency evidence should have been rejected, the remaining evidence was insufficient to prove beyond reasonable doubt that it was the appellant who was the offender in counts 7 to 11. Although there was some similarity in the appearance of the offender in the JG attacks with the appellant, JG had identified another person despite the fact that the offender was not disguised. The conversation with the police at the police station was not in my opinion capable of being found beyond reasonable doubt to amount to an admission of each of the four incidents that the police had raised at different times with the appellant.

78 It follows in my opinion that the jury ought to have found the appellant not guilty of counts 7 to 11.

79 In light of that opinion there is no reason to deal with the other grounds of appeal that are concerned with alleged misdirections or failures by the trial judge in directing the jury as to the manner in which they were to approach the tendency evidence and the significance of the admissions. These are not matters that could affect a retrial as the directions in respect of the tendency evidence or the relevance of the admissions would not arise.

80 Because the appeal against the convictions should be allowed, there is no need to consider the adequacy of the sentences imposed. However, if the appellant is again convicted after trial of counts 1 to 6, the trial judge should not feel bound to follow the sentences imposed by Judge Puckeridge or be limited by them. On its face it is difficult to understand how his Honour could have justified imposing concurrent sentences for offences against different complainants.

81 I propose the following orders:

1. The appeal against the convictions is allowed and the convictions quashed.

2. The sentences imposed in the District Court are quashed.

3. On counts 7 to 11 there is a verdict of acquittal.

4. There is to be a retrial of counts 1 to 6.
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